The United States has recently seen a dramatic uptick in digital accessibility lawsuits, with 2,387 filed by the end of 2022. Interestingly, however, this increase didn’t necessarily reflect widespread trends throughout the country. If that were the case, it stands to reason that we would have seen a relatively evenly distributed number of cases across the country. This was not the case. According to Accessibility.com’s 2022 report, only two states carried this lawsuit uptick.
Coming in second was California, with a total of 649 lawsuits. Leading the nation was New York. By the end of 2022, the Empire State had 1660 digital accessibility lawsuits.
This raises the question, what caused such a high lawsuit frequency in New York?
In this piece, we’ll explore the various federal and state-level factors that helped contribute to New York’s high number of digital accessibility lawsuits in 2022.
Federal background
To understand New York’s lawsuit increase, we need to understand what was happening with federal accessibility laws at the time.
In March 2022, the US Department of Justice unveiled a new set of standards for maintaining website accessibility. However, the guidance neglected to list any actionable steps for businesses to follow and instead referred them to the Web Content Accessibility Guidelines (WCAG).
However, this guide presents the term “flexibility.” The guidance states, “Businesses and state and local governments have flexibility in complying with the ADA’s general requirements of nondiscrimination and effective communication. But they must comply with the ADA’s requirements.”
Leaving accessibility open to such interpretation only causes problems for everyone involved.
For one thing, it doesn’t help the consumer, who risks encountering an inaccessible web experience. Furthermore, businesses, for their part, are left with little recourse to defend themselves and correct themselves if they are inaccessible.
Though the guidance is vague as to how to make websites accessible, it makes it very clear that not doing so will be considered an ADA violation. The penalties for such a violation are also clear, with defendants and plaintiffs spending large sums of money in legal fees (before any verdict-determined liabilities that may arise). This has caused some worry among businesses and defense attorneys.
The concern is that the guidance leaves companies in a precarious position. The fear is that opportunistic law firms will start hitting businesses with dubious (and even frivolous) ADA suits.
Given the DOJ’s emphasis on adhering to the ADA and its lack of clear steps, lawyers are believed to be able to exploit businesses that may violate the ADA.
With this background established, what does this have to do with New York?
New York law firms
Some states have supplemental civil rights legislation that can apply to ADA-related cases. A prominent example is the Unruh Civil Rights Act in California. Such additional legislation can help explain why California had such a high lawsuit frequency.
New York doesn’t have this kind of additional legislation. What New York does have is a high concentration of law firms. A 2020 survey conducted by the American Bar Association found that New York state held a total of almost two-hundred thousand lawyers.
According to Accessibility.com’s 2022 year-end report, the three law firms with the most suits were Stein Saks, Mars Khaimov, and Mizrahi Kroub. New York is the home of all three of these law firms.
It’s worth noting that some of these leading law firms have a less than favorable reputation among defense attorneys. In particular, they are known for prolific records of ADA-related suits.
Take Mizrahi Kroub, for example.
Prolific and questionable suit filings
With a lawsuit total of 345, Mizrahi Kroub was among the leading New York law firms that filed digital ADA suits in 2022. When considering the reasons behind this high number of suits, it’s important to know Mizrahi Kroub’s history and reputation in the legal scene.
The firm files cases that can be described as dubious at best. Take their 2022 lawsuit against the US Tennis Association (USTA).
In this case, Mizrahi Kroub represented a defendant named Robert Weekes. Weekes, a blind man, alleged that, due to the inaccessibility of the USTA’s website, he was unable to purchase an eclectic list of items including, “...military surplus items, men’s underwear, Cardi B and Meganthe Stallion merchandise, bath toys for kids to camping gear, and horse supplies, comics, slime packs,and women’s swimwear.”
If this complaint strikes the reader erroneously, the defense and the courts feel the same way. In their motion to dismiss, they noted that Weeke’s claim against the USTA was part of a series of “...copy, cut, and paste” complaints that Weekes and Mizrahi Kroub filed 79 times in the district.
Given the frequency of Mizrahi Kroub’s representation of Weekes, it’s reasonable to look at the suit against the USTA as representing a broader trend within their accessibility filings. This is not to say that all of MizrahiKroub’s claims are questionable, but that such dubious claims make up a portion of their 2022 legal record.
High-profile suit targets
The broader landscape of accessibility law changed following the resolution of Robles vs. Domino’s Pizza. In this case, the blind plaintiff sued Domino’s Pizza for their inaccessible website. After several years, the courts ended up ruling in Robles’ favor.
Though a California case, the plaintiff’s success had far-reaching effects. Not only were websites shown to be under Title III obligation, but larger companies were vulnerable to ADA suits.
Again, what does this have to do with New York?
The leading law firm in New York (and the country), Stein Saks, had a 2022 track record of filing complaints against higher-level businesses. These targets include UPS, Barnes and Noble, and Whole Foods. Many of these Stein Saks cases resemble the framework of the Domino’s case. The main difference is that these cases were class action.
his helps to illustrate a willingness (and eagerness) among law firms to test their luck against high-profile companies. Given New York’s high lawyer population, it’s only natural that the state’s suit figures will be higher than any other state’s.
Takeaways
In an interview earlier in 2023, Accessibility.com asked Jonathan Hassell (founder and CEO of Hassell Inclusion) what he believed caused the recent surge in digital accessibility lawsuits. His answer was, “If I’m being honest…lawyers.”
As accessibility has evolved in recent years, so has the legal landscape. From new federal guidance to precedent-setting cases, accessibility law is uncharted territory. Each accessibility lawsuit represents an attempt to answer important questions about how we, as a society, should maintain and ensure accessibility.
With New York being a hub for legal activity, it’s only natural that it would be an epicenter for attempts to answer those questions.
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